New acts of intimidation against civil society and restrictions on their access to foreign funding

THE OBSERVATORY - URGENT APPEAL

KEN 004 / 1216 / OBS 110

Intimidation / Smearing campaign /

Restrictions to freedom of association

Kenya
December 20, 2016

The Observatory for the Protection of Human Rights Defenders, apartnership of the World Organisation Against Torture (OMCT) and FIDH, receivednew information and requests your urgent intervention in the followingsituation in Kenya.

Description of the situation:

The Observatory has been informed by reliable sources about the recent new actsof intimidation and attacks against civil society and restrictions on their accessto foreign funding.

Accordingto the information received, on December 19, 2016, the NGO CoordinationBoard declared illegal and froze the bank accounts of the InternationalFoundation for Electoral Systems (IFES), an American non-governmentalorganisation (NGO) carrying out an electoral assistance programme ahead of theupcoming general elections of August 2017 through its Kenya office. In a letteraddressed to IFES, Principal Secretary Interior Karanja Kibicho, the CentralBank of Kenya governor and USAid[1],the NGO Coordination Board affirmed that IFES is not a registered NGO in Kenyaand therefore lacks the legal status to operate in the country. The NGO CoordinationBoard therefore ordered an asset freeze until proper registration occurs, and askedthe director of Immigration to review the status of all foreigners working withIFES.

Thishappened only one week after the public speech of President Kenyatta on December12, 2016, on Jamhuri Day (Celebration of Kenyan Independence), in which he condemnedthe work of NGOs, targeting especially the ones working in the field of civiceducation in Kenya ahead of next year’s general elections.

Duringhis intervention he accused NGOs providing civic education to be agents offoreign powers trying to influence the electoral process and threatened toforbid them from receiving foreign funding. It has to be recalled that inKenya, the role of civil society in educating the population on the politicalsystem and the electoral process is crucial to ensure free, fair andtransparent elections.

TheObservatory expresses its concern over such facts, since they are emblematic ofthe climate of hostility against civil society that has been characterizing theKenyatta administration for almost 4 years. It is not the first time that theNGO Coordination Board arbitrarily put hindrances to the freedom of associationof NGOs in Kenya[2] andthat foreign NGOs and personnel working in Kenya are targeted[3].Moreover President Kenyatta, who is running for his second mandate in theupcoming presidential elections, has been carrying out smearing campaignsagainst independent civil society in Kenya since he started his presidentialmandate, blaming NGOs for instigating crimes against humanity charges against himand for cooperating with the International Criminal Court.

Inaddition, the questioning of foreign funding for NGOs is not new to the currentadministration, since it recalls other attempts to restrict freedom ofassociation of Kenyan civil society through draconian amendments proposedto place restrictions on foreign funding to 15% for independent civil societygroups. This could be the beginning of a new wave ofharassment against the Kenyan independent civil society in view of the upcominggeneral elections.

TheObservatory would like to recall that this happens under the sameadministration that has been undermining, for more than 1000 days since itssigning into law, the commencement of the Public Benefit Organisation (PBO) Act2013, a law seeking to provide an enabling environment for NGOs. Despite theHigh Court ruling for its immediate overdue commencement on October 31, 2016,no further step has been undertaken so far[4].Instead, as of today the NGO Coordination Act 1990 is still regulating thespace for civil society with broad and vague provisions leaving room forarbitrariness and abuses against NGOs[5].

TheObservatory considers extremely worrisome this lack of political will to createa favourable environment for civil society to work without hindrances in thedefence of human rights and strongly condemns this new attack against theKenyan civil society.

Finally,the Observatory would like to reiterate the importance of guaranteeing theconstitutional rights to freedom of association, assembly and expression,particularly in view of the upcoming general elections, in order to prevent thebrutal experiences of excessive use of violence by the police that Kenya hasfaced around the past two general elections.

Actions requested:

Please write to the authorities of Kenya asking them to:

1. Put an end to all forms of harassment and smearing campaigns againstcivil society in Kenya, as well as against all human rights defenders in Kenyaas they only aim at sanctioning their legitimate human rights activities.

2. Guarantee under all circumstances the physical and psychologicalintegrity of all human rights defenders in the country;

3. Immediately issue a public statement legitimizing the work of civilsociety and human rights defenders;

4. Follow the order of the High Court of Kenya by effectivelyimplement the PBO Act without further delay.

5. Conform with the provisions of the UN Declaration on Human RightsDefenders, adopted by the General Assembly of the United Nations onDecember 9, 1998, especially Articles 1 and 12.2; and

6. More generally, ensure in all circumstances the respect for humanrights and fundamental freedoms in accordance with the UniversalDeclaration of Human Rights and with international and regional humanrights instruments ratified by Kenya.

Addresses:

· Hon.Uhuru Kenyatta, President of the Republic of Kenya, Fax: +254-020-2436,Email: president@statehousekenya.go.ke

· Hon.William Ruto, Deputy-President of the Republic of Kenya, Email: dp@deputypresident.go.ke

· Hon.Joseph Nkaissery, Interior & Coordination of National Government,Email: ps.interior@kenya.go.ke

· InspectorGeneral of Police, Email: nps@nationalpolice.go.ke

· MachariaNjeru, Chairperson, Email: macharia.njeru@ipoa.go.ke

· OtiendeAmollo, Chairperson, Commission on Administrative Justice (CAJ), Email:otiendeamollo@yahoo.com; otiendeamollo@ombudsman.go.ke

· Commissioner KagwiriaMbogori, Chairperson, Kenya National Commission on Human Rights (KNCHR),Fax: +254-020- 2716160 E-mail haki@knchr.org

· H.E.Mr. Stephen Ndungu Karau, Permanent Mission of Kenya to the United Nationsin Geneva, Switzerland, Fax: +41 22 731 29 05, E-mail: mission.kenya@ties.itu.int

· H.E.Johnson Weru, Embassy of Kenya in Brussels, Belgium, Fax: + 32 2 340 10 50 / +32 2 340 10 68. Email: kenbrussels@hotmail.com

Pleasealso write to the diplomatic representations of Kenya in your respectivecountries.

TheObservatory for the Protection of Human Rights Defenders (the Observatory) wascreated in 1997 by the World Organisation Against Torture (OMCT) and FIDH. Theobjective of this programme is to intervene to prevent or remedy situations ofrepression against human rights defenders. FIDH and OMCT are both membersof ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented byinternational civil society.

[1] The US Development Agency funds IFES with 2billion KSH for its Kenyan electoral assistance programme.

[2] See the Observatory Urgent Appeal KEN 001 / 0415 / OBS 034.1 issued on June 5,2015.

[3] Internationaland foreign registered NGOs that have an office in Kenya are facing increasingrestrictions particularly regarding the arbitrary withdrawal of work permitsfor their foreign staff working in Kenya and the denial of new ones. This wasthe case for the Kenyan office of Human Rights Watch in August 2016, where allinternational staff has been forced to leave the country and work from abroad.

[4] See Observatory Press Release issued on November4, 2016.

[5] For example, the NGO CoordinationBoard can refuse registration of an NGO applicant if its proposed activities orprocedures are not “in the national interest”, and is not legally required tofurnish the applicant with an explanation for the refusal of registration.Moreover, wide discretion is given to the NGO Board and the Minister, includingregarding the certificate of registration, and the timeframe within which theNGO Coordination Board must act on NGO registration applications.